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January 14, 2014

Real World Halachic Issues in a Time of Paradigm Shift

This morning brought another program I was really excited about -- a plenary panel called Real World Halachic Issues in a Time of Paradigm Shift, introduced and facilitated by my dear friend and teacher Rabbi Daniel Siegel. Last year's session Halakha : Honoring the Past, Finding Our Way was a highlight of the conference for me. I knew this session would be, too.

Last year, we heard from several speakers who offered different Renewal takes on a single issue. This year, we heard from several speakers, each of whom touched on a different issue in contemporary Jewish life. Each ALEPH-ordained rabbi is requited to write a teshuvah -- a rabbinic responsum to a real, living halakhic question -- in order to receive smicha. The sesson featured three of our colleagues presenting about their teshuvot, each of which was on a different subject.

Rabbi Ephraim Eisen spoke about his teshuvah on Burying Cremated Remains in a Jewish Cemetery;Rabbi Simcha Zevit spoke about her work on Choose Life / Do Not Prolong Death: A Question on Feeding Tubes; and Rabbi Jeremy Parnes offered a précis of his teshuvah Intermarriage Under a Chuppah? Renewing the Ger Toshav. (Ger toshav is the Biblical Hebrew term denoting a stranger or outsider who dwells among us.) Here are some notes and reflections from how the morning went.

Rabbi Daniel Siegel begins, "Last year I said in my introduction to the first of these sessions that we needed to re-expand the halakhic table. Rabbi Ethan Tucker talks about this in Core Issues in Halakha -- how a decision was made by the Orthodox rabbinate in the late 1800s to withdraw from the larger Jewish community and take their share of governmental money and form their own Orthodox chevre, and that was as though they took the leaves out of the table and took the extra seats away and put them by the wall, and they said, we'll just do halakha to people who are already committed to our way of living."

Last year I said that we need to put the leaves back into the table, pull up the chairs, and sit down to join the conversation. One of my favorite examples of that was that one of the first teshuvot that was written here was by R' Eyal Levinson -- a halakhic piece which legitimizes same-sex marriages [pdf]. He told me it couldn't be done, and I said if it couldn't be done then halakha is useless because it doesn't speak to the issues of our time. So he took it on. And now it's inside the conversation.

People often ask: why bother with the halakhic conversation? Why not just say, this is right so this is what we're going to do?

By way of beginning his response, he talks about the body of teshuvah literature, the records of all of the questions that congregational rabbis asked their rabbis. And he notes that when we read such a document, we understand that the rabbi who writes a given teshuvah is not saying that his answer is exhaustive. Sometimes the answer is, "This [thing X] is absolutely something which we should be doing, and, every community is going to have to make their own decision."

It doesn't matter what the answer is. The question "what's the halakha on" is almost tangential to the real process, which is to say: how do we evaluate the relationship between the principles and precedents of the past in relation to this specific moment? The most important thing is to be aware of the situation and to do the best we can, and participate in the conversation.

The halakhic conversation is about this underlying question, which is always the generic question underneath: how do I respond to this moment, or how do I perform this action, in such a way that it is connected to the revelation of our purpose at Sinai and contributes to the process of our redemption in the future?

He asks, "What do I have to do, as a Jew, to mark myself so that I stay connected, so that I can be a beacon to people to move them forward?"

He quotes Rabbi Hannah Dresner: "We are lovers, and our pillow talk, the language of our love, is our exchange of Torah. God speaks the written word to us, and we return the flow of God's love by listening and answering empathically as any lover would. We offer pilpul, extrapolations of Jewish law, as we struggle to discern how...to build in our response on what our lover has shared." And then he continues:

We have to do for halakha what Rabbi Akiva did for halakha many years ago. He said, in order for halakha to be relevant we have to have a new way of pulling meaning out of the Torah so that every letter can be used to hang halakhot on. That was a paradigm shift moment. There had to be another way. And now, as Reb Zalman has suggested to us, we need this new concept, integral halakha, to expand the halakhic conversation, so that we can be both backwards-compatible and forward-looking at the same time.

He explains that asks each student to construct a question, most often out of something in their own lives, which is: how do I respond to this particular situation in this particular moment in a way that connects me to both ends of the continuum that I see myself on. Today we'll hear from three rabbis on their teshuvot. Others are forthcoming, in written and edited form -- stay tuned. Meanwhile, we move on to hearing from our three panelists for today.

Rabbi Simcha Zevit begins by noting that often our congregants come to us seeking affirmation that a decision they're already making has a place within Jewish tradition. She cites Reb Zalman's metaphor: that as we saw our place in the universe broadened and shifted in 1968 once we were able to see the earth from space, we need now to see Judaism and its practice in a way that includes the widest lens of understanding. "We look to Torah, Talmud, halakhic codes and more current halakhic works -- and we include current societal norms, scientific knowledge, and so on, to redefine a contemporary Judaism that's doable for Jews who wish to stay true to our tradition and allow it to be reinterpreted for our time."

Integral halakha takes this paradigm shift, this wide-angle lens, into account. And it's based on our understanding of divine will. The ultimate purpose of halakha is not only defined by an outer authority; God's will is also revealed through our personal experiences. In the old paradigm we said that halakha was rooted in a transcendent God, God Who lives outside of ourselves. Now the paradigm shift includes an emphasis on the inner experience of God, and we look to manifest our understanding of what's required of us through our actions in connection to our understanding of tradition.

"This doesn't mean that each person operates on his/her own, doing whatever they feel is right and calling it halakha, the Jewish way. Judaism always has been a religion that's rooted in strong community. If we're undergoing a shift that allows personal experience and understanding to be a basis for decision-making, how then do we move to communal norms?" She cites Reb Zalman's teachings about the consensus of the committed. She notes that our tradition always offers for more than one choice, and argues that we want to cast the broadest possible net so that our people may be affirmed in their authenticity as Jews.

Her question is about nutrition and hydration at end of life. Advances in recent medical technology allow us to prolong life, and in turn raise new questions about that prolonging of life. We can send nutrients directly into the abdomen for those who can no longer swallow; respirators breathe for those who can no longer breathe. And this leaves us asking the monumental question: how and when to preserve life, and when to let go. When does continuing life become a source of pain for the patient, and a source of agonizing decisions for those concerned?

The question she addresses in her teshuvah is one which any of us might face. (She notes that the situation she poses was influenced by her own experience of caring for her elderly mother, but that it is also a kind of composite, based on the questions and experiences of others as well.) In this case, the patient's swallowing is compromised, and therefore with continued spoon-feeding she runs the risk of choking or aspiration and pneumonia, either of which would be fatal. But feeding tubes may be a futile intervention, and may go against the patient's wishes. Her question as a rabbi is, "How can I provide the best guidance, using traditional and modern sources -- and how can I be a loving presence, giving the most compassionate support possible?"

The question: I have the power of attorney for my mother, a 75-year-old woman with dementia. Her ability to make decisions about her own care is questionable, as she is confused and doesn't understand the consequences of her decisions. A year ago we discussed these issues when her mind was clearer; we did not sign directives but she said she did not want to prolong her life through technology. We did not discuss feeding tubes. Now my mother has difficulty swallowing and isn't getting sufficient nutrition and hydration. Her doctors want me to decide whether to feed her through a feeding tube. Her health is compromised by dementia, diabetes, and other issues already. Should I refuse a feeding tube?

To begin answering the question, of course, Rabbi Zevit went back to traditional sources. In brief, our sources rest on a number of obligations and assumptions. One is that the preservation of life is of great importance, surpassing almost all of the other commandments. The Talmud is full of examples showing that one must violate Shabbat, etc, if there is the slightest change that human life may be preserved or prolonged -- our own lives, or the lives of others as well. The tradition also shows a duty to heal.

The tradition also assumes that the quality and duration of the life being saved is irrelevant. Life is of infinite, not relative, value. We are created b'tzelem Elohim, and that's paramount. And, traditionally Judaism doesn't support the idea that we have unlimited personal autonomy to make decisions about our health. Our bodies and lives are not always seen as our own, but rather a gift given to us by God for a specific purpose and duration.

The flipside of that is the traditional halakhot which talk about permission to not prolong death. These are sources from Talmud -- the story of Rabbi Chanania whom the Romans burned at the stake, and the story says that his disciples saw him in pain and begged him to open his mouth and inhale so that he would die sooner. He refused to do something which would actively cause his death. But when his executioner took pity and asked if he could remove the tufts of wet wool which had been placed around his heart to prolong his death, Rabbi Chanania said yes, and also promised the executioner that he would have merit in the world to come. This is a story of not actively seeking death, but also not needlessly prolonging death. How do feeding tubes and respirators fit into that tension?

She summarizes her findings: that we have permission to not prolong death-- if someone is terminally ill (and of course there are questions about how to define that, Jewishly and according to modern medical ethics); if the person is in undeniable pain (and this can include mental and spiritual anguish, not only physical pain); and if the patient has clearly indicated that they don't want these treatments, which showcases the importance of advance directives so that the family knows what's wanted and what's needed. "What would it be like for us as Jews to include these conversations in what it means to live as Jews?"

Rabbi Efraim Eisen begins by asking: how many of us have been involved in the burial of cremains? How many of us have officiated at the ceremony of cremation? (Many hands around the room go up, suggesting that for many of us, this is a live issue in our communities today.) "I was called by a woman whom I did not know," he recounts. She had just had a funeral for her father in Florida and wanted to bring his remains to be buried in Rabbi Eisen's cemetery. Rabbi Eisen asked, "what can I do to help you bring his body back?" She said, "It's okay -- my father will travel in the overhead compartment."

According to his temple bylaws, they're not allowed to inter ashes in their cemetery. He called colleagues for advice; and the suggestion from colleagues was, tell her you welcome her back into the community and will do a ceremony, but she would do best to take care of the ashes on her own. So that's what they did in that particular instance. But the question had become a live one for him.

In 1960, 3% of people who died in the United States were cremated; in 2010, it was upwards of 40% and is continually rising. One of the biggest reasons, he suggests, is economic. There are also environmental concerns; some people say that cremation is environmentally bad because emissions in the air, but others say, what about land usage issues?

He asked his Talmud chevruta, Edward Feld, about this; Feld suggested that he consult Isaac Klein's A Guide to Jewish Religious Practice (1960.) And that book notes that "The Jewish way of burial is to place the body in the earth. Hence cremation is frowned-upon." Klein's book is a compilation of traditional halakhic practice as well as a compilation of decisions made by the Conservative movement's law committee, and that law committee has ruled that cremation is not permitted. When cremation is done, however, in disregard of Jewish practice, that book says that the ashes may be buried and the rabbi may officiate though only at the funeral home, and the interment may not be conducted by a rabbi lest his presence be interpreted as tacit approval. The fact that the Klein book says that the interment of ashes is actually permitted began a whole new series of conversations.

What does Torah say? The first mention of burial in Torah is the purchase of the cave of Machpelah by Abraham, who came to mourn for Sarah. From this parsha we learn that we have three responsibilities: to mourn, to offer a hesped (eulogy), and to bury. In Devarim 21 we learn that if a man has committed a sin worthy of death and is hanged, you shall not leave him all night on the tree but shall bury him that same day. If burial is required for a person guilty of a capital offense, all the more reason for an ordinary person to be buried as soon as possible. It also seems clear that burial is commanded but the specifics of the burial practice are left vague.

How about the Talmud? The Jerusalem Talmud concludes from this passage in Deuteronomy that we are required to bury the body in its entirety. Burning of corpses, however, is mentioned in several places in the Talmud. Burning of corpses should happen during times of plague, to prevent the spread of infection. Also relevant to this conversation is the killing and desecration of Saul and his sons. Their bodies were taken down from the wall, the bodies were burned, and the bones were buried under a tamarisk tree. Lest we interpret this to mean that the tradition condones cremation, the Radak explains that their flesh had grown worms which is why it was burned.

The Babylonian Talmud argues that cremation is a denial of the belief in resurrection and is a denial to the dignity of the body and to God Who created the body. (Rabbi Eisen adds, "My own thought on that is, if God created everything, then why couldn't God resurrect the body even from dust?") And the Mishna considers the burning of a corpse to be an idolatrous practice, a sign of idol worship. But, Rabbi Eisen asks, "Given the increasing numbers of people looking for cremation, what are we to do?"

When someone comes to him and asks for cremation, he tells us, he tries to listen to their reasons, and then to explain to them the traditional practice, which is burial. But when he's counseling someone who's in the end stages of life, or their family members, he listens more than he talks. "In Brakhot 45a we learn that going out to see what the people are doing is one way to see what the halakha should be."

"Amother principle that comes up strongly in the Talmud is, imagine that I said, no you can't bury your father in our cemetery, and therefore they turn their back on Judaism completely. The principle of 'finding the paths of peace' seems to me to be important."

One option is to set up a specific area in the cemetery for the interring of cremains. (This is a familiar practice to many of us.)

He closes by citing something that Reb Zalman said to a chevra kadisha in May 2001:

I don't want to give you a big green light for cremation. Because a lot of stuf fin Judaism says it's a no-no. But some years ago I published something where I said I wanted my remains to be cremated and the ashes to be taken to Auschwitz. My father was born in Oswiecen, my zaide was a shochet there, and when I was half a year old, they took me to zaide so he should bless me. This has become such a terrible place for us...

One of the reasons why they say no to cremation is because of something that it says in the Talmud. Titus, who had desecrated the Temple, wanted to have his corpse burned and his ashes strewn all over so that God wouldn't be able to call him to judgement. In other words, people who go to cremation won't be resurrected. But if God isn't going to resurrect the people who burned at Auschwitz, I don't want to be resurrected either.

"I believe that it is the job of the rabbi," says Rabbi Eisen, "to direct people to traditional Jewish practice, which is burial." But it's clear that he's found a way to work with those who make other choices, too. And he asks, what is the effect of cremation on the soul and how the soul departs this earth? These are continuing questions.

Rabbi Jeremy Parnes tells us that a few years ago he downloaded a sound file recommended by Reb Daniel of a lecture series by R' Ethan Tucker on halakha. (Tucker is co-founder and rosh yeshiva at Mechon Hadar.) Tucker opened his first lecture as follows:

Your Temple is like a section of pomegranate, says the Song of Songs. About this, R' Shimon ben Lakish says, don't say rakatech [Your Temple] but rekatech [Your empty / emptiness], for even the emptiest among you is full of mitzvot like the seeds of a pomegranate.

In effect he is saying that all Jews, even those who seem empty according to the rabbinic elite, are in fact practicing and committed.

How do we handle the cases of questions arising in real time where in halakha we simply get shut down? How do we maintain boundaries and not enter the inexorable slide down the slippery slope?

Reb Jeremy tells the story of receiving an email from a friend, a longstanding community member, faced with a quandary. His son was hoping to intermarry, under a chuppah, in the shul, with their community. The friend's question was: would he (Reb Jeremy) take on the responsibility of explaining to the friend's son why his request wasn't possible? The man and his son had only recently reconciled, and he did not want to risk losing his relationship with his son. "He was asking if I would be the one to alienate his son by explaining that there was no possible way that such an event could be considered."

This young man had removed himself from all things Jewish, Reb Jeremy notes -- in effect saying, "you can't fire me, I quit!" And Reb Jeremy was willing to see him that way too...until he remembered, "even the emptiest among you is like a pomegranate full of seeds." His view of this young man had been transformed by R' Shimon ben Lakish.

This young man might have been understood as the "rebellious son" from the Passover haggadah, the one who asks "what does all this mean to you?" (And the tradition says: "To you," not "to us," which shows that he doesn't consider himself part of the community.) But why would a rebellious son even ask for a Jewish wedding with chuppah? And why wouldn't we see that as him reaching back to the community?

Reb Jeremy's teshuvah seeks to answer the question, Can a Jewish male who is a member of this specific synagogue marry a non-Jewish female under a chuppah in our sanctuary? He wanted to discern: "can halakha respond to the needs of Jews in the 21st century in a meaningful way? We no longer live under the yoke of hegemony. Society today is autonomous. To present unquestioned and unquestionable determinations is only to alienate a generation whose response is frequently, demonstrably, you can't fire me -- I quit."

His synagogue is a small transdenominational group, Orthodox at its founding. Today forty percent of the families are in mixed marriages, and many others have spouses who are Jews by choice. His question speaks to the gerei toshav (strangers who dwell among us) in our community and their status. "I've watched how it's the gerei toshav in our community who are keeping things going for us, who are going into the kitchen...!" (Laughter moves around the room; we're all familiar with that phenomenon.)

We might, he suggests, substitute the term "permanent resident and citizen" for "stranger among us." The ger toshav might be able to be an active participant in Jewish community life. (In this he draws on Reb Zalman's thoughts.) His teshuvah explores how it might or might not be possible for such a wedding to take place and to be kiddushin, sanctified marriage according to traditional Jewish lights. In his teshuvah he explored five substantive questions:

Is halakha, as a specific ruling based on the interpretation of Torah, changeable when circumstances change? Can a Jew have conjugal relations with a non-Jew, providing the latter denounces idolatry and accepts the Noahide laws? Can a Jew engage into a valid contract with a non-Jew? Can the [traditional] ketubah become a true contract, rather than a pledge or bond which doesn't require the signature of the bride? Does this in fact determine whether it is possible to be married under a chuppah in the sanctuary?

He argues that in fact if we do it right, such a wedding needs to be in the chuppah under the sanctuary! Because the contract between the two families is a covenantal relationship which needs to be honored. "My research indicated, to my surprise, that this wedding was possible in this way."

In our break-out group afterwards (I choose to go to Reb Jeremy's session), we talk more about his process and his understandings. We talk about what ger toshav means in different contexts -- how do we understand that term here and now, how have others understood that term over time, and so on. What does it mean to be a "resident alien" within someone else's dominant culture? How might a non-Jew locate themselves within the embrace of our culture, and be absorbed as a resident, and what are the implications of that?

People also talk about differences between civil marriages and Jewish religious marriages, and about the effectiveness or relevance of halakha on people who are not Jewish; about being a majority culture or a minority culture and how that makes a difference; about the kinds of ketubot we use and what it means when they're not halakhic contracts.

It's a really interesting and complicated conversation. Some of us who identify as post-halakhic don't find these categories relevant or useful. Rabbi Burt Jacobson asks, "what kind of a Jewish community do we want to be living in? Does not Torah call us to love all people, and to draw them to Torah -- not only Jews, but all people; isn't that our task in Jewish Renewal?" Some argue that we can understand the gerei toshav as people who choose to become not Jews qua Jews, but part of the community of God-fearers.

Some ask whether we're doing the tradition a disservice in not acknowledging that intermarriage can be a path toward losing continuity and losing the Jewish future. Others note that intermarriage can also be a doorway in, and that one reason that historically the children of intermarriages haven't been brought up as knowledgeable Jews is that the Jewish community used to exile such families from our midst. (And, as a corollary: that it's incumbent on us as people who live in a time of paradigm shift to change our community's paradigm for thinking about these issues.)

We have to stop when the hour for lunch arrives -- but I think we could have spent all day on this, and I'm sure that had I gone to one of the other two break-out groups (the one on cremains and the one on end-of-life issues), I would have found an equally deep, passionate, and thoughtful conversation.

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Real World Halachic Issues in a Time of Paradigm Shift

This morning brought another program I was really excited about -- a plenary panel called Real World Halachic Issues in a Time of Paradigm Shift, introduced and facilitated by my dear friend and teacher Rabbi Daniel Siegel. Last year's session Halakha : Honoring the Past, Finding Our Way was a highlight of the conference for me. I knew this session would be, too.

Last year, we heard from several speakers who offered different Renewal takes on a single issue. This year, we heard from several speakers, each of whom touched on a different issue in contemporary Jewish life. Each ALEPH-ordained rabbi is requited to write a teshuvah -- a rabbinic responsum to a real, living halakhic question -- in order to receive smicha. The sesson featured three of our colleagues presenting about their teshuvot, each of which was on a different subject.

Rabbi Ephraim Eisen spoke about his teshuvah on Burying Cremated Remains in a Jewish Cemetery;Rabbi Simcha Zevit spoke about her work on Choose Life / Do Not Prolong Death: A Question on Feeding Tubes; and Rabbi Jeremy Parnes offered a précis of his teshuvah Intermarriage Under a Chuppah? Renewing the Ger Toshav. (Ger toshav is the Biblical Hebrew term denoting a stranger or outsider who dwells among us.) Here are some notes and reflections from how the morning went.

Rabbi Daniel Siegel begins, "Last year I said in my introduction to the first of these sessions that we needed to re-expand the halakhic table. Rabbi Ethan Tucker talks about this in Core Issues in Halakha -- how a decision was made by the Orthodox rabbinate in the late 1800s to withdraw from the larger Jewish community and take their share of governmental money and form their own Orthodox chevre, and that was as though they took the leaves out of the table and took the extra seats away and put them by the wall, and they said, we'll just do halakha to people who are already committed to our way of living."

Last year I said that we need to put the leaves back into the table, pull up the chairs, and sit down to join the conversation. One of my favorite examples of that was that one of the first teshuvot that was written here was by R' Eyal Levinson -- a halakhic piece which legitimizes same-sex marriages [pdf]. He told me it couldn't be done, and I said if it couldn't be done then halakha is useless because it doesn't speak to the issues of our time. So he took it on. And now it's inside the conversation.

People often ask: why bother with the halakhic conversation? Why not just say, this is right so this is what we're going to do?

By way of beginning his response, he talks about the body of teshuvah literature, the records of all of the questions that congregational rabbis asked their rabbis. And he notes that when we read such a document, we understand that the rabbi who writes a given teshuvah is not saying that his answer is exhaustive. Sometimes the answer is, "This [thing X] is absolutely something which we should be doing, and, every community is going to have to make their own decision."

It doesn't matter what the answer is. The question "what's the halakha on" is almost tangential to the real process, which is to say: how do we evaluate the relationship between the principles and precedents of the past in relation to this specific moment? The most important thing is to be aware of the situation and to do the best we can, and participate in the conversation.

The halakhic conversation is about this underlying question, which is always the generic question underneath: how do I respond to this moment, or how do I perform this action, in such a way that it is connected to the revelation of our purpose at Sinai and contributes to the process of our redemption in the future?

He asks, "What do I have to do, as a Jew, to mark myself so that I stay connected, so that I can be a beacon to people to move them forward?"

He quotes Rabbi Hannah Dresner: "We are lovers, and our pillow talk, the language of our love, is our exchange of Torah. God speaks the written word to us, and we return the flow of God's love by listening and answering empathically as any lover would. We offer pilpul, extrapolations of Jewish law, as we struggle to discern how...to build in our response on what our lover has shared." And then he continues:

We have to do for halakha what Rabbi Akiva did for halakha many years ago. He said, in order for halakha to be relevant we have to have a new way of pulling meaning out of the Torah so that every letter can be used to hang halakhot on. That was a paradigm shift moment. There had to be another way. And now, as Reb Zalman has suggested to us, we need this new concept, integral halakha, to expand the halakhic conversation, so that we can be both backwards-compatible and forward-looking at the same time.

He explains that asks each student to construct a question, most often out of something in their own lives, which is: how do I respond to this particular situation in this particular moment in a way that connects me to both ends of the continuum that I see myself on. Today we'll hear from three rabbis on their teshuvot. Others are forthcoming, in written and edited form -- stay tuned. Meanwhile, we move on to hearing from our three panelists for today.